June 13, 2014

To Our Clients and Friends:

On June 10, 2014, Los Angeles County Superior Court Judge Rolf M. Treu issued an historic decision in Vergara v. California, striking down five provisions of the California Education Code relating to the tenure and dismissal of public school teachers as unconstitutional under the equal protection provisions of the California Constitution.

The plaintiffs, nine California public school students, filed suit against the State of California in May 2012 with the assistance of Students Matter, a non-profit organization dedicated to improving public education. The plaintiffs contended that the five challenged statutes violate their fundamental right to equality of education by effectively preventing school districts from making personnel decisions that serve students' best interests. Specifically, the lawsuit targeted California's "Permanent Employment Statute," which forces administrators to either grant or deny permanent employment to teachers after an evaluation period of less than 18 months--long before administrators are able to assess whether a teacher will be effective; three "Dismissal Statutes," which create a Byzantine process for dismissing a single ineffective teacher that involves numerous steps, requires years of documentation, costs hundreds of thousands of dollars, and rarely ever works; and the "Last-In, First-Out" ("LIFO") Statute, which forces school districts to make layoff decisions based on seniority alone, with no consideration of teachers' performance in the classroom. Plaintiffs argued that these statutes create a system in which grossly ineffective teachers obtain and permanently retain employment in California public schools, harming students year after year, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.

In May 2013, the state's two largest teacher unions, the California Teachers Association and the California Federation of Teachers, intervened in the case to defend these statutes alongside the State.

Following a nine-week trial that commenced on January 27, 2014, the court ruled that plaintiffs "met their burden of proof on all issues presented" and enjoined enforcement of all five statutes, with the injunction stayed pending appellate review. The court held that plaintiffs' evidence regarding the impact of grossly ineffective teachers on students "shocks the conscience." The court recounted key testimony, for instance, from noted Harvard economists Raj Chetty and Thomas Kane that a single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom and results in 9.54 months of lost learning compared to students assigned to average teachers. And because no party disputed that thousands of grossly ineffective teachers are currently employed by California schools, it "cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact" on California students by "substantially undermin[ing] . . . [their] ability to succeed in school."

In rendering its decision for plaintiffs, the court concluded that the State and the unions failed to demonstrate that any of the challenged statutes are necessary to serve a compelling state interest:

·Permanent Employment Statute: The court concluded that "both students and teachers are unfairly, unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current Permanent Employment Statute," noting that most states provide at least three years to evaluate new teachers and that the State's own experts testified that 3-5 years would provide a better timeframe for students and teachers alike.

·Dismissal Statutes: The court found "the Dismissal Statutes to be so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory." Evidence presented at trial demonstrated that "it could take anywhere from two to almost ten years and cost $50,000 to $450,000 or more to bring these cases to conclusion . . . and that given these facts, grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases." Indeed, many witnesses testified that dismissals are "extremely rare" or "impossible," and Los Angeles Unified School District "alone had 350 grossly ineffective teachers it wished to dismiss at the time of trial." The court rejected the State's argument that extremely costly, time-consuming dismissal procedures are necessary to protect teachers' due process rights; rather, the statutes mandate "über due process" that is both unnecessary (given other protections available to teachers under California law) and indefensible when weighed against students' right to a quality education.

·LIFO Statute: The court found that the LIFO Statute creates a "lose-lose" situation where "[n]o matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one . . . is separated from [her students] and a senior grossly ineffective one . . . is left in place" during layoffs. California is one of only a handful of states that require layoff decisions to be made strictly based on a teacher's hiring date without considering effectiveness in the classroom; 41 states allow schools to consider other factors or prohibit consideration of seniority altogether. "The logic of this system is unfathomable" and "constitutionally unsupportable," the court concluded.

The court also concluded that the challenged statutes disproportionately harm poor and minority students. A report written by the State itself concedes that "the most vulnerable students, those attending high-poverty, low-performing schools, are far more likely than their wealthier peers to attend schools having a disproportionate number of underqualified, inexperienced, out-of-field, and ineffective teachers" and therefore "bear the brunt of staffing inequalities." This disproportionate impact is amplified by the pernicious "Dance of the Lemons," in which ineffective teachers that districts struggle to dismiss under the Dismissal Statutes are transferred to schools serving predominantly low-income and minority students, as well as seniority-based layoffs, which devastate inner-city schools staffed with a disproportionate number of junior teachers.

The Vergara decision follows a long line of California cases, including Serrano v. Priest and Butt v. California, in which the California Supreme Court has recognized that a child's right to equality of educational opportunity is a fundamental interest guaranteed by the California Constitution. Whereas Serrano and Butt focused on inequalities in school funding and the length of the school year, Vergara confirms that this right extends to the quality of instruction provided in the classroom. This landmark decision represents a complete victory for the plaintiffs and a resounding vindication of their struggle to give students a voice in the key personnel decisions that shape public education in California. The New York Times Editorial Board described Judge Treu's ruling as an "important decision" that "opens a new chapter in the equal education struggle" and "underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well." U.S. Secretary of Education Arne Duncan also praised the decision, calling it a "mandate to fix these problems" and encouraging all stakeholders to work together "to increase public confidence in public education" and "build a new framework for the teaching profession that protects students' rights to equal educational opportunities."

Gibson, Dunn & Crutcher's lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in the firm's Appellate and Constitutional Law Practice Group or the following authors of this alert: